[2023] KEHC 26514 (KLR)

Wagumba v Republic (Criminal Appeal 17 of 2023) [2023] KEHC 26514 (KLR) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26514 (KLR)

Republic of Kenya

In the High Court at Kibera

Criminal Appeal 17 of 2023

DR Kavedza, J

December 8, 2023

Between

Georgina Chalete Wagumba

Appellant

and

Republic

Respondent

(Being an appeal against the original conviction and sentence delivered by by Hon L O Onyina on 21st October 2022 at JKIA Chief Magistrate’s Court criminal case no. E009 of 2021 Republic v Georgina Chalete Wagumba & Another vs Republic)

Judgment

1. The appellant with another not before this court was charged and after a full trial convicted for the offence of trafficking in narcotic drugs contrary to section 4 (a) of the Narcotic Drugs and Psychotropic Substances (Control) Act, No. 4 of 1994. The appellant was sentenced to pay a fine of Kshs. 1,500,000, in default to serve 1-year imprisonment. In addition, she was sentenced to seven years imprisonment. The sentence was however reduced by twenty (20) months in consideration of the time spent in pre-trial custody.

2. Being dissatisfied she filed an appeal challenging her conviction and sentence. In her petition of appeal, she challenged the totality of the prosecution’s evidence against which she was convicted. She complained that the trial court failed to consider her defence. She challenged the sentence as being manifestly harsh and excessive.

3. As this is a first appeal, I am required to re-evaluate the evidence tendered in the trial court and come to an independent conclusion as to whether or not to uphold the convictions and sentences. This task must have regard to the fact that I never saw or heard the witnesses testify (see Okeno v Republic [1973] EA 32).

4. The prosecution called seven (7) witnesses in support of their case. The prosecution’s evidence was that on January 20, 2021, a team of police officers from the Directorate of Criminal Investigations responded to a tip-off about suspected narcotics activities at Saika estate house number 458. They apprehended the one person leaving the house with a red shopping bag. Subsequent searches on the premises led to the discovery of a whitish substance suspected to be a narcotic drug.

5. When the officers attempted to search the person apprehended, the appellant herein seized the substance, ran to the toilet, and attempted to flush it. The officers successfully retrieved the discarded substance from a manhole outside. The search also uncovered a red shopping bag with a bottle of red palm oil, a small dried fish, and additional suspected narcotic substances in different parts of the house.

6. The appellant claimed ownership of the residence, and the search revealed various documents, including a passport, identification card, travel receipts, and an application for a new passport. The officers, including Police Constable Patrick Mugambi and Corporal Derricks Kiprono, escorted the suspects to the DCI headquarters and Gigiri police station, where they were booked.

7. Photographs of the scene, presented as prosecution exhibits, along with a report and certificate prepared by PW7, documented the search process. The entire operation involved officers from the Special Service Unit and the DCI headquarters. The seized substances, exhibits, and relevant documentation form the basis of the prosecution's case against the appellant herein and her co-accused Godswill Okechukwu.

8. On January 21, 2021, at approximately 1:30 pm, the suspects were taken to the anti-narcotics office at JKIA along with the government analyst. Police Constable Patrick Mugambi conducted the weighing of two packages, which resulted in a total weight of 168. 92 grams. Weighing certificates and photographs were produced by PW4, who was assisted by corporal Derricks Kiprono and witnessed by the appellant and her co-accused and the government analyst, Denis Owino (PW2).

9. PW2, a government analyst, took samples from the packages, marked GW1(a)s and GW2(a)s, weighing 0. 34 grams and 0. 45 grams, totaling 0. 79 grams. Sampling was done at the JKIA anti-narcotics office and witnessed by the accused persons and police constables Patrick Mugambi and Derrick Kiprono. The preliminary test conducted by PW2 indicated the presence of heroin, leading to the preparation of a Notice of Seizure. The government analyst's report, dated February 2, 2021, was produced by the prosecution.

10. Chief Inspector Philip Langat (PW3) provided a valuation of Ksh 506,760 for the 168. 92 grams of heroin on January 21, 2021, based on the charge sheet, weighing certificate, and government analyst's report.

11. Police Constable Peter Mbatha (PW6) from the DCI headquarters Digital Forensics Laboratory examined two mobile phones forwarded on March 25, 2021, to extract text messages, WhatsApp chats, and photos from March 1, 2020, to January 20, 2021.

12. PW7, the investigating officer, prepared a notice of intention to tender records in evidence and a Record of custody of seized Substance dated 21/1/2021. The accused persons were charged with trafficking in narcotic drugs on 26/1/2021.

13. After the close of the prosecution's case, the accused persons were placed on their defence. The appellant told the court that she is a resident of Saika estate engaged in the foodstuff business. She told the court that on January 20, 2021, a client named Okechukwu came to buy palm oil. They negotiated a price of Ksh. 700 per kilogram, and he also purchased Dagga for Ksh. 200. After his swift departure, four individuals arrived, questioning her about the owner of the house. When they identified her as Georgina, they insisted her husband was present. Despite her denial, additional officers, including Okechukwu, entered, and her children affirmed that he wasn't their father.

14. The officers, claiming to be from the anti-narcotics unit, initiated a thorough search. Though the sitting room and kitchen yielded no evidence, a polythene bag discovered in the bedroom led to her distress. She threw it out, prompting physical assault and restraint by the officers. They presented a wrapped item as evidence, took photographs, and coerced her and Okechukwu to sign. She asserted her innocence, stating her involvement was limited to purchasing Dagga and palm oil for personal use, with her primary business in Saika and Umoja 3 affected by COVID-19.

15. The second accused, a Nigerian national engaged in the trade of cosmetics and clothes, testified that on January 20, 2021, he sought red palm oil from the appellant, his supplier. Upon arriving at her house, he negotiated the price and purchased a bottle along with fish called Dagga for Ksh. 200/-. Shortly after leaving, he was accosted by individuals in a Nissan vehicle who forcibly searched him, questioned his immigration status, and confiscated his documents and phone. They tied his hands, accused him of visa expiration, and drove him to appellant's house, where they searched.

16. He signed a form presented by anti-narcotics officers. Chaos ensued, with the appellant being restrained, taped, and her house disrupted. The officers seized the red palm oil bottle for investigation. The second accused and the appellant were then taken to the DCI headquarters and subsequently to the police station and airport for interrogation before being brought to court.

Analysis and determination. 17. In her written submissions, the appellant challenged the totality of the prosecution's evidence against which she was convicted. She argued that the package's whole operation was a set-up and the package recovered conveniently placed in her house by the police. In addition, there was no independent witnesses to verify the claims by the officers from the anti-narcotics unit.

18. This court has re-evaluated the evidence adduced before the trial court, the appellant’s grounds of appeal as well as the rival parties’ submission. Section 4(a) of the Narcotic Drugs and Psychotropic Substances Control Act provides as follows;“Any person who trafficks in any narcotic drug or psychotropic substance or any substance represented or held out by him to be a narcotic drug or psychotropic substance shall be guilty of an offence and liable:-(a)in respect of any narcotic drug or psychotropic substance to a fine of one million shillings or three times the market value of the narcotic drug or psychotropic substance, whichever is the greater, and, in addition, to imprisonment for life;”

19. The case against the appellant was that on January 20, 2021, police responded to a narcotics tip-off at Saika estate, arresting a person leaving with a red shopping bag. Subsequent searches revealed suspected narcotic substances. The appellant seized and attempted to flush a substance during a search, but it was recovered. The search uncovered red palm oil, dried fish, and more suspected substances. The appellant claimed residence ownership. Escorting them to DCI headquarters and Gigiri police station, officers documented the scene with photos, reports, and certificates. In the JKIA's anti-narcotics office, the suspects' packages were weighed at 168. 92 grams, witnessed by the appellant, her co-accused, and the government analyst.

20. (PW3) provided a valuation of Ksh 506,760 for the 168. 92 grams of heroin on January 21, 2021, based on the charge sheet, weighing certificate, and government analyst's report.

21. The chain of custody for the substances recovered in the case against the appellant is well documented through the testimonies of various witnesses. The investigating officer detailed the custody of seized substances through the inventory prepared and introduced the notice of intention to tender records in evidence, along with several items recovered from the appellant as evidence. This sequence of testimonies establishes a clear and continuous chain of custody for the substances recovered from the appellant's premises. The chain of custody of the exhibits was clearly explained by the prosecution witnesses.

22. On whether the substance recovered was narcotic, the government analyst, testified that she conducted a preliminary test of the substance recovered from the appellant's premises. The test confirmed that the substance contained heroin. She conducted a sampling exercise and determined the purity of diacetylmorphine in the creamish powder. The prosecution adduced evidence that established that the substance found in the appellant's possession was a narcotic substance within the meaning ascribed to the term by section 2(1) of the Narcotic Drugs and Psychotropic Substances (Control) Act and the 1st schedule thereof.

23. In her defence, the appellant denied knowing the existence of the heroin in her premises. She argued that she was likely framed by the anti-narcotic unit. The court considered her defence and found it to be uncredible. In view of the foregoing, I find that the appellant’s defence did not dislodge the cogent evidence adduced by the prosecution. In my view, the appellant’s defence was properly dismissed by the trial court as an afterthought aimed at exonerating herself from the offence.

24. From the evidence of the prosecution witnesses, which was well corroborated, there is no doubt that in my mind the prosecution proved beyond reasonable doubt the offence charged.

25. On the sentence, the appellant was sentenced to pay a fine of Kshs. 1,500,000, in default to serve 1-year imprisonment. In addition, she was sentenced to seven years imprisonment. The sentence was, however, reduced by twenty (20) months in consideration of the time spent in pre-trial custody. The appellant argued that their sentence was harsh and excessive.

26. From the record, the said narcotic drugs were duly weighed and found to be the value of a substance (heroin) weighing 168. 92 grams with a market value of Ksh 506,760. In sentencing, the trial court considered the market value before imposing the fine in addition to the prison sentence. The trial court also considered her mitigation and that she was a first offender. The sentence meted out was therefore within the law.

27. The upshot of the above is that the appeal against conviction and sentence is dismissed for lacking in merit.Orders accordingly.

JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 8THDAY OF DECEMBER 2023________________D. KAVEDZAJUDGEIn the presence of:Mr. Kiragu for the stateMr. Kangahi for the appellantNaomi Court Assistant.